Not on the Same Whale Wave

Information note N°8
Whales at the International Court of Justice
The Hague, The Netherlands, 2nd hearing of Japan, July 15th – 16th

Over the last 3 weeks, at the Peace Palace in The Hague (Netherlands), the past and the future of whaling has been explored in all its scope. In their closing remarks on July 16th, Japan implied that if the Court declared a decision in favour of Australia’s case, it would be the equivalent of forcing a State to abide to a decision that they did not agree to. On this note they reemphasized that when they agreed to the 1982 moratorium, which came into force for Japan in 1986, it was uniquely in light of this provision being reviewed. If Japan was to wake up one morning and find that the Convention that they agreed on had changed over night then the only way out would be to leave.

Closing, in the same way as he had opened the case, Deputy Minister for Foreign Affairs and Agent of Japan, Mr Koji Tsuruoka spoke of Pacta sunt servanda “agreements must be kept”, with respect to all and in “good faith”* (See Note N°3 Japanese “Scientific Whaling” by its Right Name is “Commercial Whaling” – Article 26 on Vienna Convention)*. According to Japan, they have acted in “good faith” in accordance with the text of the International Whaling Commission (IWC). They believe that the Convention which has been presented to the Court, by Australia and by New Zealand during their intervention is not the Convention that Japan had signed up for: [what you have not agreed […] does not bind you”. For Japan, the object of the Convention is not the conservation and recovery of whale stocks the object of the Convention is to regulate whaling.

According to Japan the whale song has changed, in the second round of arguments Australia added to their claim that Japan’s JARPA program does not comply with the requirements of paragraph 30 of the Convention (see New: Zealand: A Collective Vision for Whales). This paragraph relates directly to Article VIII, on scientific whaling, and points at time delays related to proposed scientific permits to the IWC, objectives of the research, –number, sex, size and stock targeted–, opportunities for international scientists to participate and possible effect on conservation of stock.* In Japan’s opinion this is in contradiction to Australia’s original claim. They cannot understand how Australia can accuse them of “commercial whaling” instead of “scientific whaling” while accusing them of violating the requirements of paragraph 30. Either Australia is accusing them of commercial whaling or accusing them of non-compliance to the Convention text with regards to scientific whaling, not both.

Japan has gone to great lengths to draw up the differences between their commercial and scientific whaling. Notably, they state that the trackline of JARPA vessels proves this. If the Japanese whaling fleet were carrying out commercial activities they would spend 100%, and not 20%, of their time in areas with significant whale populations for the fishing expedition to be commercially viable. They pointed out to the Court that the scientific observations made when following the vessel’s trackline is in the public domain and published on The Institute of Cetacean Research website (see Information note N°5 and N° 7). Concerning the sale of whale meat for human and animal food they declared that this is not unlawful as it is not the sole purpose of JARPA activities.

On the question of qualifying JARPA as “scientific”, Japan does not consider it to be within the Court’s jurisdiction to decide whether the foundations of a particular scientific project are solid. On this note Professor Pellet said “we are not carrying out a Medieval Inquisition”. For Japan the scientific objective of JARPA is clear: “to resolve the scientific uncertainties and pave the way for the resumption of sustainable whaling”. They believe that through the JARPA programs they have contributed to important research needs on understanding the structure of whale stocks and population dynamics and that this information can only be obtained via lethal means. Japan addressed the issue of diverging scientific opinions on JARPA II, including from those who boycotted the revision at the Scientific Committee, to be the very nature of science. They claimed that the calculation on lethal catches of whales which “positively” contribute to science do “add up”. They also claim that since his declaration to the Court, when he said that he did not like the methods used by the Japanese therefore he did not even consider them, Professor Walløe has actually investigated the statistical method in the textbook and said that it more or less “added up”.

Concerning the requirements of each Contracting Government to the IWC, Japan believes that they respect the moratorium as bound and conduct scientific research in accordance with the Convention. They admitted that sometimes they are a little late in presenting their scientific permits however this does not demonstrate, in their opinion, “bad faith” on their behalf. Japan emphasized their “good faith” by the fact that they renounced from taking humpback whales and only a “limited number” of fin whales and that this was done to accommodate Contracting Governments’ demands. Once again, they emphasized their “good faith” and hence multilateral commitment to international law by not withdrawing from the Convention as Canada did in 1981 and, as they seem to think, Denmark might in 2014. Japan said it did not back down from their stance, as the victims of Australia’s “conspiracy theory” of JARPA II, and even went as far as adding that Australia and other non-whaling countries uncompromising attitudes will result in two whaling Commissions, one for whaling the other anti-whaling.

Japan’s main argument on the lack of jurisdiction of the International Court of Justice, based on Australia’s reservation to the International Court of Justice on maritime territorial disputes that, according to Japan, nullifies all demands made by Australia was raised yet again (see information note N° 4 and N° 7). And yet again to underline their stance, and Australia’s aim at protecting potential or self-proclaimed territorial waters they repeatedly referred to the coincidence of the geographical scope of JARPA II within Australia’s Antarctic maritime claim and the non-global scope of Australia’s argument via the exclusion of JARPN II in the North Pacific.

In conclusion, Japan reminded the Court that JARPA II will be reviewed at the next Scientific Committee and that they found the experience over the last three weeks gratifying. They were relieved that they could finally review to the whole world the true extent of Japan’s scientific whaling.

Editorial note: This final note seems a little ironic as if, as it should be, the “true nature” of Japan’s “scientific whaling” was clear to the rest of the world they would not have been called to the International Court of Justice to prove it. The judgement will be delivered before the next International Whaling Conference, which will be held in 2014 during the European summer.

*Article 26 Vienna Convention
“Pacta sunt servanda” – Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

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